CD v RD, 2024 ABCJ 21

In the Alberta Court of Justice Citation: CD v RD 2024 ABCJ 21 Date: 20240129 Docket: FF021002803 Registry: Grande Prairie Between: CD Applicant - and - RD and KG Respondents Restriction on Publication Identification Ban – See the Family Law Act ,

section 100. By Court Order, no person shall publish or broadcast information that may identify the child involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on February 7, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. Decision of the Honourable Justice D.R. Shynkar [ 1 ] This application concerns the child RG, born in 2014, now 10. Her maternal grandmother has applied for a Contact Order.

Leave of the Court has previously been obtained. I heard the trial January 16th, 2024, and argument on January 25 th , 2024. I heard the evidence of the grandmother, the mother, and the father, as well as the submissions of counsel appointed for the child.

The Background Generally [ 2 ] RG lived with her mother in the maternal grandparents’ home for a time after her parents separated. She was about 2 when that period began, and perhaps 6 and a half when it ended. Doubtless there were happy times, but there is evidence from all the witnesses of significant family dysfunction. [ 3 ] The grandmother testified to being assaulted by the grandfather, and RG witnessing that, and to various non-contact orders, the grandfather then living elsewhere, and that relationship being unrecoverable.

She also testified to the mother’s poor behaviour in her home, leading her to refuse to allow the mother’s continued residence there. [ 4 ] There was a gap in the grandmother’s contact with the child of several years after the child moved out, and the grandmother made no significant attempts to see her.

She testified that she was recovering from the assault, mentally and physically, and there was essentially no communication between she and the mother, who was living with the grandfather. [ 5 ] The mother testified to her poor treatment by the grandmother (her mother), including eviction from the home (and was inclined to characterize this as an eviction of the child as well, a characterization disputed by the grandmother). The grandmother at one point made an insulting comment about the mother on social media, although that was quickly removed (those witnesses disagree on whether she later apologized).

The grandmother also made several reports about the mother to child protective services, although that did not result in significant action. [ 6 ] The mother was upset by what she considered “sneaky” behaviour on the grandmother’s

part in communicating secretly with the child before this application was made: there was evidence that the child and the grandmother, who drove the child’s school bus for a time, passed notes and drawings to one another, and that the grandmother passed notes and gifts to the child through other children. The mother, and apparently the grandfather, were incensed by this, and discussions were had with the principle and the police.

The mother harbours a suspicion that the grandmother wishes to have the child in her own care. [ 7 ] The mother was upset by other contact between the grandmother and the child, including a chance meeting at a grocery store, during which the child (present with an unrelated adult) recognized the grandmother, they greeted one another, and hugged. There was an incident when the grandmother, travelling in a car with her son on an errand, saw the child on the street, the child waved, and she waved back.

The mother, convinced that the grandmother was purposefully driving by her home in order to make contact with the child (which the grandmother denied), cancelled contact scheduled by interim Order and the matter was addressed again in court on an urgent basis. [ 8 ] The father was disinclined to give detailed evidence about the history of family problems. He testified, “There’s so much history we’d be here for days,” and that alcohol consumption in the mother’s family had been an ongoing issue.

At times, he did not feel that his daughter was entirely safe there, and at one point he made his own report to child protection services, which also did not result in significant action. [ 9 ] Currently, the grandparents do not communicate with one another, and the grandmother insists that is not ever going to happen; the mother refuses to communicate directly with the grandmother, and whether that will change remains to be seen; the father, still living separately from the mother, communicates with both the grandmother and the mother.

Currently, the child lives with the mother (and grandfather) and spends some weekends with her father. [ 10 ] The father’s general approach to reviewing the past behaviours and allegations of behaviour of the parties (which is to say, refraining from going over it or dwelling on it in any detail) is not without merit. I do not find it productive to parse the minutia of bad behaviour, or alleged bad behaviour, on the part of the mother, the grandmother, or the grandfather. It is likely fair to say they have all behaved badly, and sometimes very badly, from time to time.

Attribution of fault and blame here is not particularly helpful. It suffices to observe that there is a history of long-standing dysfunction and trauma in this family, and the court’s task is to see that RG’s life in that family is affected by that as little as possible. Which is also an obligation of her parents and grandparents. [ 11 ] A cloud of resentment and distrust hangs heavily over this family, centered primarily on the damaged or destroyed relationships between the grandparents and between the grandmother and the mother.

There is no doubt that the child is well aware of the resentment and distrust, whether or not she knows of or understands all of its details. She should not have to walk on eggshells around the adults because of their issues, and one can infer from the evidence that this is very likely occurring. [ 12 ] In the interim, the grandmother and child have had supervised contact by order, supervised most often by the father.

Ostensibly, the supervision is to prevent the grandmother from discussing religion or the conflict between she and the grandfather with the child (which the grandmother says she would not do anyway), as well as provide general comfort and reassurance to the child. Everyone seems to acknowledge that visits have gone well, in the sense that the child enjoys herself and is not traumatized by them. There has been the occasional scheduling hiccup. What the Child Wants [ 13 ] What RG wants is only one consideration of many but has been much discussed in evidence and argument.

Counsel for the child expressed that the child would like to continue to see her grandmother and would like that contact to remain supervised by her father. The mother, father, and grandmother all insist they want to respect the child’s wishes. On the face of it, that is somewhat awkward for the grandmother, when the child’s expressed wish is for continued supervised contact when the grandmother would like unsupervised contact. [ 14 ] Based on the evidence as a whole, I have no doubt that what this child wants is for the adults to get along, and for her not to be under pressure from anyone.

She wants to see all the important adults in her life under happy circumstances, and not have any of them

upset with her or with each other. My very strong suspicion is that she does not care for her own purposes whether contact is supervised or not, and she is choosing that in response to the behaviour of the adults: that lets her see her grandmother on terms she very likely understands her mother, father, and grandfather can grudgingly accept. For her, it is the obvious middle ground. I am hesitant to accept that she has some significant fear that makes her want the visits supervised, other than a fear of continuing and growing conflict between the adults she loves.

If indeed she has a fear that her grandmother will take her away from her mother (suggested in her discussions with her counsel), that fear has likely been instilled, or at least unintentionally transmitted, from her mother. The Wishes of the Parents [ 15 ] Those wishes are not paramount, but I am not without sympathy for parents who feel that they should make the decisions regarding who their children see.

And I agree that generally, the court should not interfere with the reasonably exercised discretion of the parents in relation to the contact a child has with non-guardians, as the exercise of that discretion is one of the many duties of a parent. It seems to me that is exactly why the legislation requires leave of the court for a grandparent seeking contact in most circumstances: to remind the court that contact orders are inherently a significant interference with parental discretion.

I also do not overlook the fact that while these parents have been separated for years, they take the same position on this application (that contact continue to be supervised). The Significance of the Relationship [ 16 ] I am satisfied that the relationship is of significance, notwithstanding the interruption of it as disclosed in the evidence, and notwithstanding the general family dysfunction.

The grandmother and the child spent considerable time in the same household, with the grandmother providing care at least some of the time, and the child’s reaction to seeing her grandmother, or having contact with her by way of notes or drawings even after the period of separation, underlines the notion that her grandmother is a person of consequence in her life. That she is not a person of consequence at the level of her mother and father does not diminish that, nor do I find it contradictory that she has thrived even during the time she did not have contact with her grandmother.

The Necessity for an Order [ 17 ] I am also satisfied that an Order is necessary, and that the parties cannot just be left to work things out between them. The father has been doing most of the heavy lifting in that respect, but there are limits on what he can accomplish in this environment. One hopes there will come a day when the grandmother and the parents no longer need an Order, but that is not today; that is all too obvious from the litigation record and the testimony of the parties.

Whether the Denial of Contact has been Unreasonable [ 18 ] This might be expressed as a reference to past denials of contact in this case, given that there are interim orders permitting contact, as well as a position advanced by the parents that permits contact. I am satisfied on the evidence that the complete denial was unreasonable at the time.

It is arguable that the current opposition to unsupervised contact is also unreasonable, notwithstanding that such contact may best protect the child’s well-being in a climate of family dysfunction; in other words, what may make supervised contact reasonable is essentially the behaviour of those most strenuously in favour of it, primarily the mother (and perhaps the grandfather as well), and may be in the child’s best interests for that reason.

Which observation is connected to the inference to be drawn from the evidence that the child’s preference for supervision is very likely based on her desire for minimal family conflict. Whether Denial of Contact may Jeopardize the Child’s Health [ 19 ] The legislation does not say “will be significantly jeopardized,” it says, “ may be jeopardized.” How significant does the jeopardy have to be for the applicant’s onus to be satisfied? Is the test satisfied if there is a reasonable possibility that the child’s emotional health could be negatively affected more than minimally?

I find that to be the test. [ 20 ] “May” imports reasonable possibility, not probability. “Jeopardy” imports some degree of potential harm; jeopardy is not harm; it is risk of harm. I find that there is a reasonable possibility that the child’s emotional health would be negatively affected more than minimally if contact with her grandmother is not permitted.

On the evidence, I am satisfied that she would be much saddened by the complete absence of this grandmother in her life. [ 21 ] If I am incorrect on that particular point, I am of the view that such a finding is not a prerequisite to granting a contact order: the legislation directs me to consider the best interests of this child, including that question; the Act does not make it a required finding.

The case of VW v AT 2022 ABCA 261 , provided by counsel, specifies that the applicant has the onus of proof in that respect, but not that the applicant is required to successfully present such proof (which would seem somewhat counterintuitive, but the wording of the legislation is not ambiguous). The case of BM v JM 2019 ABCA 503 at paragraph 14 and following indicates very clearly that the superior court approves a “flexible approach” which does not necessarily require proof of jeopardy if contact is denied; that is entirely consistent with the wording of the legislation. All counsel appeared to agree with this

interpretation. The Result of Applying the Best Interests Test

[ 22 ] Counsel appropriately referenced section 18(2) of the Family Law Act , which sets out a listing of the things the Court must consider when determining a child’s best interests; section 35(5) adds the “jeopardy” and “unreasonable denial” considerations to that list. These reasons have addressed those I find relevant here, either directly or indirectly (family violence has been present in the past, but I do not find it to be a significant consideration in the current circumstances), and I will not further address each sub-subsection individually.

It is worth observing, however, that the first item on the legislated list is that the Court shall “ensure the greatest possible protection of the child’s physical, psychological and emotional safety.” [ 23 ] The dysfunction in the relationships of the grandparents and of the grandmother and RG’s mother is obvious, significant, and perhaps intractable. The behaviour of the parties, and particularly the mother, in engaging in a kind of strategic warfare arising from their antipathies frankly makes supervised parenting time most appropriate.

Not because the grandmother needs supervision, not because the child necessarily wants it, but because it best protects the grandmother from unfounded allegations of wrongdoing, and much more importantly, protects the child from continuing conflict and escalation of conflict. Which is unfortunate, and I am disappointed to arrive at that conclusion.

It means RG may not have exclusive time with her grandmother to bake cookies or any of the many things enumerated by her grandmother in evidence. [ 24 ] One of the few bright spots in all of this is the approach of RG’s father: he has put real effort into making contact between RG and her grandmother work, and I commend him for that. It has been inconvenient for him, and costly for him (to come to court), but he has clearly recognized a value to his daughter having some contact with her grandmother, and because he wants what is best for her, he has made it happen.

I do not overlook his initial, and perhaps continuing, view that an Order should not be necessary, as the parents should be responsible for making such decisions; additionally, that he initially felt contact was not yet appropriate because of the family dysfunction and his fear of its effects on the child. Nevertheless, he stepped up, and has essentially been the communication link between the grandmother and the mother. [ 25 ] I am satisfied on the evidence that supervised contact with her grandmother is indeed in RG’s best interest.

The two clearly have a positive bond, from which RG stands to benefit, and continuing supervision best protects the child from the dysfunction present in her family. There is potential for contact to become unsupervised, particularly in light of the grandmother’s expressed desire to recommence a cordial relationship with the mother; on the other hand, the mother at this time expresses no such desire.

The Nature of Appropriate Contact [ 26 ] My having found that it is in the child’s best interest to have contact with her grandmother, and that such contact should be supervised to protect the child from the potential for deleterious effects from the significant family dysfunction, what form of order is most appropriate? [ 27 ] The grandmother would like a set schedule, so that she can organize her affairs in advance; she has quite reasonably proposed that contact occur on a “professional development day,” when the child will not be in school (and might need childcare) just before the father’s weekend parenting time (effectively extending his parenting time if he supervised, although he would be sharing it with his ex- mother-in-law, which he would not likely find ideal). [ 28 ] The father would like the

schedule looser, so that arrangements can be made in advance, but flexibly to account for his work commitments, which he says he cannot predict many months in advance. He seems prepared to continue as a supervisor. The mother seems to agree with the father, and additionally, wants no direct communication with the grandmother (her mother), and is content to have the father as the go-between. [ 29 ] I have considered the possibility of giving the father some specific discretion to absent himself for a time during supervised contact, but I have some concern for that then causing conflict between he and the mother.

In the end, I will leave to his best judgment what he considers to be “supervision,” and whether that includes being constantly within arm’s reach or merely nearby. I have also considered the suggestion of counsel for the child that perhaps shorter, unsupervised periods of contact could be interspersed between the supervised contacts.

But I have some concern for that increasing family tensions to the detriment of the child, at least in the near term. [ 30 ] I have considered the extent of appropriate contact, noting that the grandmother has asked for gradually increasing contact to eventually include multiple (unsupervised) overnights during the child’s summer school vacation. I recognize that the viability of lengthy contact is constrained by the father’s reasonable ability to supervise it, and by the child’s need to have extensive time exclusively with him.

The child has a need for time with a variety of other people of lesser consequence in her life than her parents as well. I am also mindful that while I have found the relationship between the child and the grandmother to be significant, it is not a parent-child or caregiver-child relationship in the sense that it stands on a similar footing as the relationships between the child and her parents. [ 31 ] That is not to say, however, that unsupervised contact, including occasional overnight visits, will never become appropriate and in the child’s best interests.

Indeed, the parents ought reasonably to assume that in the fullness of time such contact will become appropriate, and to consider how best to transition to such contact. At the same time, the grandmother cannot assume that her contact will expand to such an extent that it rivals the father’s parenting time in frequency or duration. [ 32 ] I find the best interests of the child to be served by an Order with the following provisions, to be drafted by counsel for the child, and approved as to form and content by other counsel (approval as to form and content by the father is waived).

The wording of the Order may differ from that set out below, provided the effect is consistent with the terms below; with the consent of counsel and the father, additional terms may be added, provided those are clearly referenced as by consent as to those particular terms, and the Order is directed to my attention for personal review and signature:

A) The grandmother shall have contact with the child for a minimum of 6 hours per month, supervised by the father or a person designated by him;

B) The contact may occur in non-public locations;

C) The father will arrange for pickups from, and drop-offs to, the child’s residence as necessary, and otherwise arrange affairs to avoid contact between the grandparents and between the grandmother and the mother unless they consent to such contact;

D) The grandmother shall have additional contact with the child as agreed between she and the parents;

E) The grandmother and father shall communicate by their preferred, agreed method, and in default of agreement by email;

F) The mother shall communicate with the father, such that the grandmother is entitled to rely on the father’s expressions of the mother’s position or views;

G) All three will respond promptly and respectfully to communications received;

H) Lincoln McGrath may be present during the grandmother’s contact time at her discretion; others may be present as agreed by the parties;

I) The grandmother may initiate telephone or electronic communication with the child once per week, and may receive and respond to such communications from the child at any time; the parents will, through the father, provide the grandmother with the necessary contact information for the child;

J) The grandmother will not intentionally pursue contact with the child outside the bounds of this Order, but in the event of unexpected contact is entitled to greet the child, embrace her, and briefly exchange pleasantries as she finds appropriate;

K) The grandmother shall not discuss the following topics in the child’s presence: a. Her relationship or any conflict with the mother or the grandfather; b. Her religion or religious practices.

L) The parents shall not discuss the following topics in the child’s presence: a. Their relationship or any conflict with the grandmother or the relationship or any conflict between the grandmother and the grandfather.

M) The parties shall not speak about any relevant court proceedings with or in the presence of the child, nor leave court documentation where the child may access it;

N) The parties shall work amicably together as may be required and in the best interests of the child, shall not speak negatively about one another in her presence, and shall promote positive relationships with all of the parties. Costs [ 33 ] In discussions with counsel at the close of argument, it appeared that all were content with a direction that costs may be addressed by way of written submissions of no more than a page (approximately), which submissions may be in point form or otherwise truncated, but in a reasonably sized font.

The three counsels are to file their submissions, and copy each other, and the father, within 7 days of their receipt of this decision. The father, as a self-represented litigant likely unfamiliar with arguments as to costs, may have the luxury of presenting any costs submissions he wishes to make within 7 days of receiving the third of counsel’s initial submissions. If any counsel wishes to respond to an initial submission, or to the submission of the father, they may do so within 5 days of its receipt, to the extent of approximately one-half page, in point form or otherwise truncated.

My impression was that these relatively short time frames are acceptable to counsel; if not, a request for an extension can be made through the Judicial Assistants. Such a request, like all communications with the Court, must be copied to opposing counsel and the father. Heard on the 16 th day of January 2024 and the 25 th day of January 2024. Dated at the City of Grande Prairie, Alberta this 29 th day of January 2024. D.R. Shynkar A Justice of the Alberta Court of Justice

Appearances: Reiman, N. for the Applicant Erickson, M. for the Respondent mother Respondent father Self-represented Channan, S. for the child _______________________________________________________ Corrigendum of the Decision of The Decision of the Honourable Justice D.R. Shynkar _______________________________________________________ The citation was numbered incorrectly. Should have been Citation: CD v RD 2024 ABCJ 21, not Citation: CD v RD 2024 ABCJ 22 .